Title III of the Senate’s immigration bill, S. 744, covers a broad range of interior enforcement issues, but Subtitle G makes an effort to tackle some tricky issues related to immigration detention. With an apparent understanding that the primary purpose of detaining non-citizens is to have them appear in immigration court for a hearing, the bill directs the Department of Homeland Security (DHS) to create secure alternatives to detention, including contracting with community-based organizations (CBOs)—and not just a private company, as Immigration and Customs Enforcement (ICE) currently does—in every field office. Alternatives to detention can include measures such as ankle bracelets with GPS or other conditions placed upon someone who is not physically detained. The bill makes clear that determinations about the appropriateness of secure alternatives are made by an individualized assessment, which would include considerations such as flight risk, risk to public safety, or other individual circumstances.

The bill also calls for new compliance and oversight requirements for the detention facilities themselves. Unlike the current uneven application of different ICE detention standards to different facilities, the bill requires that all detention facilities apply the most recent standards and policies and directs ICE to expeditiously incorporate these as a material term to new and existing contracts and agreements. Non-compliance with these standards will lead to financial penalties and possible termination of the contract or closure. While these are very promising steps forward, the accompanying oversight is only conducted by internal DHS reviewers and not an external, independent entity. It’s unclear whether this oversight will be sufficiently rigorous to trigger any penalties even when warranted.

One of the biggest problems yet to be tackled in the detention arena is the bed mandate, which requires ICE to detain 34,000 individuals each year through appropriations. So long as ICE must fill so many beds, the incentive will work against the use of alternatives or closures of substandard facilities.

If legalization of many millions of undocumented individuals succeeds, how can we reconcile the requirement to detain so many people?

How can we revisit the need to detain individuals when other methods have proven just as effective in getting people to appear at their immigration proceedings and save the taxpayers considerable sums of money?

Share →